The Sociology of Codification of Muslim Personal Law in India: From Positivism to Communicative Rationality

Asif

 

Abstract: With emerging complexity in the western society and the dilemma of western intellectualism, sociologists searched for a stable legal order. August Comte’s positivism came to the rescue. However, that was only short lived as the assumptions of positivism, which focused on the unification of social system based on the ideas of natural sciences, clashed with new ideas that focused on subjectivity. This led to the birth of phenomenology. Habermas attempted to stabilise the shattering ‘modernity’ through his idea of a lifeworld. In his lifeworld, a multi-religious society could allow the free expression of ideas. This article argues that this journey from positivism to communicative rationality reflects the evolving nature of legal systems and societal norms that must be read in their proper context. Understanding the sociology of codification of Muslim personal laws would involve examining the processes, influences, and implications of formalising Islamic family and personal laws within a legal framework. Keeping this in sight, this article traces the roots of codification of Shari’ah as Muhammadan Law in the backdrop of the move from positivism to communicative rationality. While doing so, the article challenges the merits of codification, especially in matters involving family life, and explores the possibility of resolving disputes through religious processes rooted in non-positive legal framework.